This Post speaks for itself

I was recently asked to write a blog post for this prestigious IIT law blog by one of its founding fathers (I so like this word). My initial thoughts were to write about section 377 of Indian Penal code.

The argument was that the words “against the order of nature” in the section is ambiguous and the legislature does not have the requisite competence to use such words in a criminal statute A.K.A Colourable legislation (what you cannot do directly you cannot do indirectly).

Research on this topic was done for two weeks after which I went to our Constitutional Law professor to get clarity of the Idea (Very proudly), Our professor had to control his laughter at this Bakwaas idea of mine and explained to me that the doctrine of colourable legislation applies only with regard to testing of legislative competence according to the lists provided in the seventh Schedule of the Indian Constitution. 

Due to Peer pressure from the same person,  I started doing the thing I actually do when I do not know what to do – Google “How to write a law blog”, what came up was suggestions to write on law, doctrines in law.. oh yea.. the usual general stuff. What stood out was to communicate to readers whatever thought you are having with questions to ponder upon.

I have a liking for these doctrines such as colourable legislation (what you cannot do directly you cannot do indirectly) and concepts like Butterfly effect. So why not prove Butterfly effect using a common law doctrine?

http://www.deviantart.com/morelikethis/394290438

Butterfly effect means a small change one place in a deterministic nonlinear system can result in large differences in a later state. Though I do not understand it fully being a layman, I understand that small change at a place in a time can result in a larger change in a different place in a different time.

This got me thinking. Let us consider one of the craziest doctrines Res ipsa loquitor (the thing speaks for itself) to prove Butterfly effect.  History says these lines were used by Cicero in a speech made for his friend Milo who was accused for murdering his political enemy around 52 BCE (it seems he used a different version as res loquitor ipsa- the thing itself speaks, would have transformed into more innuendos if we would have known).

This doctrine first came into the annals of common law in a judgment by, Sir Charles Edward Pollock A.K.A Baron Pollock in the case of Byrne v.Boadle in the year 1863, when a barrel of flour rolled out of a window and fell on a pedestrian who sued the owner of warehouse. Sir Pollock used res ipsa loquitor in a brief colloquy with the counsel to shift the burden of proof from plaintiff to the defendant. He used the Latin term being a classical scholar in the best tradition of English judges (As you might have already guessed by the improvement in the language, the original article). 

Now this is a Small change in the year 1863 in England.

In the year 1987 in a developing Country (Been developing for a long time aren’t we?) in a public Interest litigation filed by Mr. M.C. Mehta (now I need to give citation – 1987 SC 965 oleum gas leak case) the doctrine was applied in spirit to shift the burden of proof from the public (here Mr. M.C. Mehta) to the industry which releases harmful gas.

In Vellore Citizens’ Welfare Forum v. Union of India((1996) 5 SCC 647)the Supreme Court sealed the shifting of Burden of proof from the person affected to the person causing the effect by introducing precautionary Principle (shifting burden of proof) which is a part of Customary International Law according to the judgment.

After this Particular Judgment the Courts in India has applied this principle in many cases and has formed an inevitable part of Indian Environmental Jurisprudence.

This is a larger change in the year 1996 in India.

So a simple statement used by a philosopher became a tort law doctrine in 1863 and now has a permanent place in Indian Environmental jurisprudence.

Butterfly Effect Proved.

Now that I have proved Butterfly effect I would go to my initial point about section 377(Disclaimer: I am not for or against section 377, I just don’t like these words “against the order of nature"). Our Honourable Supreme Court have held that Section 377 of Indian Penal code is not violative of the Constitution of India.

Our Honourable Supreme Court have been busy propounding Negative voting, disqualification of criminal law makers and many other judgments that are in consonance with the needs of the society in the year of 2013. But when it came to challenge of 377 IPC they also rejected the review petition.

This style of interpreting law according to the needs of society in a particular time is called purposive interpretation in general (in particular Objective purpose). 

The Supreme Court refrained from starting a small change which they could have done easily by easily reading sexual orientation included in sex that is given in Article 15 of the Indian Constitution.

The judges in the proceedings of the case of Suresh Kumar Koushal v. NAZ Foundation said that “20-30 years ago surrogacy would have been considered to be against the order of nature. Today it is a thriving business.” 

Some of the petitioners that was in favor of 377 IPC in the mentioned case included Tamil Nadu Muslim MunnetraKazhagam; Utkal Christian Council; the All India Muslim Personal Law Board; Trust Gods Ministry; the Apostolic Churches Alliance, tr its Bishop (there were no Hindu, Buddhists, Sikhs, Jain or other religious groups).

The Parliament while enacting Criminal Amendment Act did not consider the deletion of Section 377 as suggested by the Law commission in its 172^nd report. But the Government filed for review in the Supreme Court which was rejected by the Court and the Ministers comment on its judgment were termed as not in good taste and also unwarranted by the Supreme court.

So the Questions I am putting before you are:

1.   Has the Supreme Court created a smaller change by challenging the vote bank politics of the current Indian political system by this judgment?

2       Will it lead to a larger change during Elections?

3       Have I started a smaller change that will lead to a larger change by asking the above questions?

4      Is Butterfly Effect Real?

The one single answer I give you is res ipsa loquitor – this post speaks for itself and I am really not kidding.

Author - Narayanan H

Disclaimer: This blog or any post thereof is not to be considered to be in any way associated with the official stand of IIT kharagpur or RGSOIPL on the issues being discussed in the said post. The opinions on the blog are the authors own and should not be considered as legal advice.